Myriad Reloaded and Ready for the Next Round?

Queen Mary Journal of Intellectual Property, Vol.3, No.1, pp. 70-80 (2013)

12 Pages Posted: 27 Jun 2019 Last revised: 22 Jul 2020

See all articles by Timo Minssen

Timo Minssen

University of Copenhagen - Centre for Advanced Studies in Biomedical Innovation Law (CeBIL) - Faculty of Law

Robert M. Schwartz

Lund University Faculty of Law

Date Written: January 1, 2013

Abstract

In March 2011 the Supreme Court issued its Prometheus opinion and granted certiorari, reversed and remanded Myriad I for consideration in light of Prometheus. In August 2012 the Myriad II decision was issued. The panel in Myriad II repeated most of their separate Myriad I opinions. Myriad déjà vu looked much Myriad I with panel members agreeing that Prometheus did not control the composition of matter claims. The opinions differed on whether composition claims were to be analyzed from a chemical, structural or carrier of information standpoint with respect to laws of nature. The rationales used such rhetorical metaphors as cleaving, baseball bats, magic microscopes, extracted kidneys, slabs of marble or marble statues, the Sistine Chapel, and whether cells were “transformed” molecules or “carriers of information". The differing evaluations of patent-eligibility and the cursory manner in which they addressed the Supreme Court’s GVR mandate may well guarantee a return appearance before the Supreme Court or, at a minimum, en banc review by the Circuit.

Suggested Citation

Minssen, Timo and Schwartz, Robert M., Myriad Reloaded and Ready for the Next Round? (January 1, 2013). Queen Mary Journal of Intellectual Property, Vol.3, No.1, pp. 70-80 (2013) , Available at SSRN: https://ssrn.com/abstract=3409259

Timo Minssen (Contact Author)

University of Copenhagen - Centre for Advanced Studies in Biomedical Innovation Law (CeBIL) - Faculty of Law ( email )

Karen Blixens Plads 16
Copenhagen, 2300
Denmark
+46 708 607517 (Phone)

HOME PAGE: http://jura.ku.dk/cebil/staff/profile/?pure=en/persons/381631

Robert M. Schwartz

Lund University Faculty of Law ( email )

Lilla Gråbrödersgatan 4
Lund, 222 22
Sweden

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